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ST. GEORGE, SC: Huge Setback for ECUSA at South Carolina Trial -- Their Expert Concedes the Case
By A.S. HALEY
THE ANGLICAN CURMUDGEON
http://accurmudgeon.blogspot.com/
July 16, 2014
Yesterday, July 15, was the seventh day of the ongoing trial involving Bishop Lawrence's Episcopal Diocese of South Carolina and thirty-four of its parishes, as plaintiffs, seeking to quiet the title to their real and personal property against the claims made by ECUSA and its rump group, the "Episcopal Church in South Carolina" ("ECSC"). The defendants say that the Diocese and its parishes all forfeited their property when the Diocese voted to amend its governing documents so as to make it no longer a constituent member of ECUSA.
According to the official line promulgated by ECUSA, "people may leave, but dioceses may not." ECUSA claims to be made up of 110 dioceses (actually, now 109 following the merger of Quincy into the Diocese of Chicago), but four of them are not true dioceses -- they are the rump groups set up by 815 to act as plaintiffs (or, in some cases, when they cannot organize fast enough, as defendants and counterclaimants) in the lawsuits brought to recover the bank accounts and real properties that belonged to the dioceses and their member parishes that voted to withdraw. Those rump groups, although each newly organized, have never formally been admitted as proper "dioceses" into union with General Convention, as required by ECUSA's own Constitution.
And one sees right away why: if ECUSA were to go through the formalities necessary to admit them as new dioceses, it would give away its argument that "dioceses cannot leave." Instead it has the rump groups pretend to be the ongoing original dioceses, and then has General Convention recognize them as such and seat their deputies.
Thus far, only two trial courts -- one in Pittsburgh, and the other in Fresno, California -- have been taken in by this ruse. Judges in Texas and in Illinois, meanwhile, have not. (A ruling is expected any day now from the Illinois Court of Appeals which will affirm a lower court's judgment that the [now Anglican] Diocese of Quincy properly amended its own governing documents so as to remove itself from ECUSA.)
And now ECUSA may have shot itself in the foot in South Carolina, as well. Let's have the Press Office of the Episcopal Diocese tell us what happened on Day 7 of the trial, with ECUSA and ECSC putting on their portion of the case (I have added some explanatory notes, taken from my daily postings on the trial over at StandFirm):
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DAY SEVEN: DIOCESE OF SC v. THE EPISCOPAL CHURCH
TEC Witness Admits Diocesan Constitution, Canons Trump Those of the National Church
ST. GEORGE, SC, JULY 16, 2014 –An expert witness for The Episcopal Church (TEC) undermined claims by the denomination that its rules supersede those of local dioceses in the Diocese of SC, during day-long testimony in the trial to protect local diocesan and church property from seizure by TEC and its local subsidiary, The Episcopal Church in South Carolina (TECSC).
Martin McWilliams, a law professor at the University of South Carolina, was called by TEC and TECSC to testify as an expert witness.
McWilliams spent considerable time explaining his credentials as a corporate governance expert and said that because the Episcopal Diocese of South Carolina incorporated the constitutions and canons of the national church in its own corporate charter, it is governed by those constitutions and canons. [Ed. Note: I am unaware of any language in the Diocese of South Carolina's Constitution and Canons that ever purported to incorporate the national Constitution and Canons, as opposed to merely acceding(agreeing) to them. Perhaps that is all the witness intended to say: by acceding to the national Constitution and Canons, the Diocese agreed to go along with, and be subject to, them. But accession, as I noted earlier, involves consent, and consent is at the will of the one consenting: it may be withdrawn at any time, unless the consent is expressly stated to be "perpetual", "forever binding", or words to that effect. (The Articles of Confederation, for example, described the Union so formed as "perpetual" -- and that was one of the reasons why the Supreme Court held, following the Civil War, that States could not unilaterally withdraw from the United States.) Here, the accession by South Carolina was never made "binding", "perpetual", or anything similar -- it was simply an accession for as long as the Diocese should continue to consent to what ECUSA did.]
However, on cross examination by the diocese’s attorneys, Alan Runyan and Henrietta Golding, he acknowledged that the diocese – while it may incorporate the national rules – is, in fact, governed by its own documents.
He further acknowledged there is no rule in either the national canons and constitutions, nor in the diocese’s own constitutions and canons that prohibits the diocese from amending its corporate documents. [My emphasis -- Ed.]
He also said that the diocese was within its legal rights to amend its articles of incorporation. [Ed. Note: Well, that pretty much concedes the whole case. Under the ruling in the All Saints Waccamaw case?, which is binding on Judge Goodstein, if the Diocese followed its own Constitution and procedures in amending its documents so as to make it no longer capable of being part of ECUSA, then the national Church has nothing to say about those amendments: it reserved in its own Constitution no power to restrict the ability of a diocese to amend its governing documents, and had no language requiring a "perpetual" union.]
McWilliams was the only witness called.
And no wonder -- his testimony on cross-examination must have thrown the ECUSA attorneys into consternation. (There is no mention of any attempt to rehabilitate the witness by a re-direct examination.) The shock and surprise may also be seen by the fact that as of the time I am posting this (which is around 2:30 a.m. Eastern Daylight Time on July 17), no account of the day's proceedings has yet appeared on the ECSC website.
Does this mean that ECUSA's own million-dollar house expert, Prof. Robert Mullin, will be called in to try to rescue the case? He does not have the legal qualifications that Prof. McWilliams has -- but that does not deter him from offering his opinion that dioceses are bound permanently to the national Church, and may not leave on their own. However, he offers that view as an historian of the Church, and readily concedes that there is no language in the Constitution or Canons which says that a diocese may not withdraw once it has joined. It is all a matter of "interpretation", you see.
Nevertheless, any such opinion, even if Dr. Mullin is flown in to offer it, cannot stand beside that of a corporate law expert like Prof. McWilliams. The latter's is based on a neutral analysis of all of the governing documents -- exactly as the South Carolina courts are required to analyze them under the holding in All Saints Waccamaw.
So Day 7 could prove to have been the decisive day of this trial. Stay tuned for more as the trial progresses.
